Judicial Nominations

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction. In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties. Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration. This period covers three Democratic Administrations and three Republican Administrations (twenty years of each). In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)

U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked. While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators. As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on. During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states. In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans. In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals. In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees. Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed. Of these, 35 were from states requiring blue-slips from Republican senators. Of these 35…

Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed. Of these, 26 were from states with Republican home-state senators. Of these 26…

Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.

Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.

Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.

Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed. Of these, 31 were in states that had Democratic home-state senators. Of these 31:

Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.

None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).

One was recommended by a Democratic senator: Judge Helene White.

Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall? Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench. Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges. In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration. Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals. In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previousstatements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy. You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

Former Indiana Supreme Court Justice Myra Selby

U.S. District Court Judge Abdul Kallon

Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood

Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips. Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit. In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so. As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips. So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators. But, in his statement justifying his actions, Grassley made no mention of this. Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate. With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections. Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations. Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.” Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.” Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement. As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration). Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership. So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview. Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed. The White House has studiously avoided nominating judges in states with Democratic Senators. The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues). Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so. I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip. As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions. As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have. This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips. For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration. Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips. In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips. So far, the Trump Administration has 50 judicial nominees pending before the Senate. Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon). So, as such, why change the rules of a game you’re winning? If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

Today, the White House announced nine new judicial nominations (seven to lifetime appointments). The new nominees are:

Barry Ashe, a New Orleans based civil litigator, has been nominated to the U.S. District Court for the Eastern District of Louisiana.

Daniel Domenico, the former Solicitor General of Colorado, has been nominated to the U.S. District Court for the District of Colorado.

Stuart Kyle Duncan, an appellate attorney and former counsel for the Becket Fund for Religious Liberty, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Judge Kurt Engelhardt, a federal district judge appointed by President George W. Bush, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

James Ho, a partner in the Dallas Office of Gibson Dunn, and the former Solicitor General of Texas, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Ryan T Holte, a professor at the University of Akron School of Law, has been nominated to the U.S. Court of Federal Claims.

Gregory E. Maggs, the Arthur Selwyn Miller Research Professor of Law at the George Washington University Law School, has been nominated to the U.S. Court of Appeals for the Armed Forces. (Full disclosure, Maggs taught me in law school, wrote several of my clerkship recommendations, and remains a mentor.)

Howard Nielson, a former Deputy Assistant Attorney General in the Department of Justice, has been nominated to the U.S. District Court for the District of Utah.

Justice Don Willett, currently serving on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Today, President Donald Trump announced the nominations of three circuit court nominees and thirteen district court nominees. The nominees are as follows:

Judge R. Stan Baker – a federal magistrate judge on the U.S. District Court for the Southern District of Georgia, Baker has been tapped to fill a vacancy on the same district.

Jeffrey Uhlman Beaverstock – a partner in a Mobile law firm, Beaverstock has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Alabama.

Ryan Wesley Bounds – a federal prosecutor and former clerk to conservative Judge Diarmund O’Scannlain, Bounds has been nominated to fill O’Scannlain’s Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.

Judge Elizabeth Branch – a judge on the Georgia Court of Appeals, Branch has been nominated to fill the Georgia seat vacated by Judge Frank Hull on the U.S. Court of Appeals for the Eleventh Circuit.

John W. Broomes – a partner in an Overland Park based law firm, Broomes has been tapped for a vacancy on the U.S. District Court for the District of Kansas.

Judge Walter David Counts III – a federal magistrate, Counts has been nominated to a fill a vacancy on the U.S. District Court for the Western District of Texas. He had been nominated to the same court by President Obama but was not confirmed.

Rebecca Grady Jennings – a Louisville law firm partner, Jennings has been tapped for a vacancy on the U.S. District Court for the Western District of Kentucky.

Matthew Kacsmaryk – Deputy General Counsel to the First Liberty Institute, Kacsmaryk has been nominated for the U.S. District Court for the Northern District of Texas.

Gregory Katsas – a Deputy White House Counsel and former clerk to Justice Clarence Thomas, Katsas has been nominated to fill a vacancy left by Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit.

Emily Coody Marks – a Montgomery law firm partner, Marks has been nominated to the U.S. District Court for the Middle District of Alabama.

Jeff Mateer – the first Assistant Attorney General of Texas, Mateer has been nominated for the U.S. District Court for the Eastern District of Texas.

Judge Terry F. Moorer – a federal magistrate judge, Moorer’s nomination was announced for the U.S. District Court for the Middle District of Alabama in May (but never submitted). Moorer has instead been nominated for the U.S. District Court for the Southern District of Alabama.

Matthew Petersen – a Commissioner on the Federal Election Commission, Petersen has been nominated for the U.S. District Court for the District of Columbia.

Fernando Rodriguez – field office director in the Dominican Republic for International Justice Mission, Rodriguez has been nominated for the U.S. District Court for the Southern District of Texas.

Karen Gren Scholer – a principal at a Dallas law firm, Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas. She had previously been nominated to fill a vacancy on the U.S. District Court for the Eastern District of Texas by President Obama.

Brett Talley – a Deputy Assistant Attorney General in the Office of Legal Policy at the Department of Justice, Talley has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Alabama.

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee. Here are my preliminary thoughts on the proceedings, which can be watched here. (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER: These are just my opinions. Reasonable observers of the hearing can obviously disagree on any of these points.

Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawnliberalcriticism. Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.

Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee. Over the course of the hearing, it was clear why. Larsen was poised and comfortably conversed with senators on several legal issues. She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence. She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there. As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation. Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.

Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.” Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism. For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law. However, much of the posturing was undone by two key missteps. First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution. Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge? Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF). When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF. She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group. It was an unnecessarily defensive performance and undermined her careful answers until that point.

Franken Remains the Minority’s Best Questioner – In the last “big” hearing, Franken helped lead the Democrat’s charge against John Bush and Damien Schiff. This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed. Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.

Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all. This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees. He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so. Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions. Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round. At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.

During the 2012 Presidential campaign, Republican candidate Mitt Romney was mocked for declaring that he had “binders full of women” ready to appoint to federal positions. The phrase, while awkward, signaled Romney’s commitment to gender diversity in his appointments. In contrast, President Trump’s appointments, from his US Attorneys to his executive appointments, have been overwhelmingly male. This pattern is evident in his judicial appointments.

As of August 23, 2017, President Trump has named 36 nominees to Article III courts: 11 to the U.S. Court of Appeals; 24 to the U.S. District Courts; and Justice Neil Gorsuch to the U.S. Supreme Court. Out of these 36 nominees, only seven are women. In contrast, by August 2009, President Obama had nominated only 17 nominees, but had named just as many women: seven, including Justice Sonia Sotomayor to the U.S. Supreme Court.

Comparatively, only 19% of President Trump’s judicial nominations are women, a lower percentage than the last three presidents, and comparable with the nominations made by President George H.W. Bush. The ratio is particularly skewed in nominations to the U.S. District Courts. Only four out of 24 District Court nominations have gone to women.

Out of the seven female nominees, three replace departing female judges and four replace male judges. In contrast, six of the male nominees put forward replace female judges. In other words, with the confirmation of these nominees, for the first time since the Eisenhower Administration, the overall number of active female judges would go down.

It is still early, and the Trump Administration could pick up the pace and appoint more women to the federal bench. However, the tea leaves are not promising. Rather, the nominees the Administration have in the works are also, generally, male:

DC Circuit – While the Administration was looking at four well-qualified female candidates to fill the vacancy left by Judge Janice Rogers Brown’s retirement, the expected nominee, Deputy White House Counsel Greg Katsas, is male.

Second Circuit – The Administration has pitched four candidates to New York Senators Chuck Schumer and Kirsten Gillibrand to fill two 2nd circuit vacancies: all four candidates are male.

Third Circuit – The Administration is preparing to nominate Paul Matey to fill one of two vacancies without a nominee. For the other vacancy, the Administration is mulling David Porter. Both candidates are male.

Seventh Circuit – The White House has interviewed three men to replace Judge Ann Claire Williams.

Ninth Circuit – The leading candidates for vacancies in Arizona, California, and Oregon are all men.

Tenth Circuit – Three male attorneys are being considered for the New Mexico seat vacated by Judge Paul Kelly.

Eleventh Circuit – The list of candidates being considered for the vacancy by Judge Frank Hull (a woman), is mostly male, but does include female Georgia Supreme Court Justice Britt Grant.

The Administration and its supporters will argue that this doesn’t matter. As long as the nominees put forward are qualified, their gender is irrelevant.

While this is true on the individual level, such an argument is based around the erroneous assumption that the only way a female candidate would be chosen over a male one is due to emphasis on diversity. This is patently false. Women make up approximately 35% of the legal profession, and this percentage is increasing sharply. Furthermore, the federal bench (the elite of the judiciary) is already one third female. As such, producing a pool of nominees that is only 19% female suggests an inability to consider qualified female nominees, rather than a slavish devotion to quality.

Since FDR was in office, every single administration appointed a greater percentage of women to the federal bench than the previous administration of their party. Unless corrective measures are take, the Trump Administration looks set to break that trend.

Update – I wanted to address a reader inquiry. The reader in question wanted to know why the relevant barometer for comparison was the percentage of women in the legal profession, rather than the percentage of women in organizations like the Federalist Society, from where Trump draws his appointees. Three responses.

First, federal judges primarily serve the rule of law and the general public. As such, it is particularly important that the public maintain faith in the judiciary. Numerous studies have shown that when female or minority judges are left off the bench, that both the quality and perception of justice suffer. As such, you judge the diversity of federal judges based on those appearing in court before them.

Second, the Federalist Society does not constitute the entirety of conservative lawyers. While the membership of the Federalist Society may be predominantly white and male, there are other sources of conservative women. Furthermore, District Court appointments, where the gender gap is particularly bad, generally do not come from the Federalist Society. In most cases, the male nominees being chosen are themselves not members of the Federalist Society. As such, it is difficult to believe that Federalist Society membership is the basis on which female judges are being ignored.

Third and most importantly, the pool of conservative attorneys that Trump is drawing upon for his nominees is essentially the same as the pool tapped by past Republican Presidents. Over ten years ago, despite women making up only about 25% of the legal community, President Bush managed to have women constitute 22% of his appointees. Twenty five years ago, President George H.W. Bush essentially matched Trump’s current 19% despite working with a female legal population that was substantially lower than what Trump has now. When these past presidents, whose nominees were equally conservative, could maintain parity between the percentage of women in their appointments and the percentage of women in the legal community, there is no reason why President Trump cannot do so.